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张五常:公司的合同本质 The Journal of ECONOMICS Edited by WILLIAM M. LANDES, DENNIS W. nnd FRANK H. EASTERBROOK Editor JILL M. KOSAK The Journal of Law and Economics (ISSN 0022-2186) is published semiannually, in and October. Subscription rates to The of and Economics EC...

张五常:公司的合同本质
The Journal of ECONOMICS Edited by WILLIAM M. LANDES, DENNIS W. nnd FRANK H. EASTERBROOK Editor JILL M. KOSAK The Journal of Law and Economics (ISSN 0022-2186) is published semiannually, in and October. Subscription rates to The of and Economics ECONOMICS and combination rates for subscription to of and Economics and The Journal of Legal Studies: O n e Y e a r Two Years X X V I A P R I L 1 9 8 3 Subscriber JLE JLE Institution $25.00 $42.50 $45.00 $76.50 Individuals 18.00 30.60 32.40 55.08 UC Law School Alumni 12.00 20.40 21.60 36.72 Students* 12.00 20.40 *Written by a faculty member must accompany student subscription. Outside the U.S.A. and its possessions add $3.00 for each year’s subscription to cover postage. Single copy rates: institutions $13.00; individuals $9.50. Checks should be made payable to The Journal of Law und Economics, The University of Chicago Press, Journals Division, P.O. Box 37005, Chicago, Illinois 60637. Subscribers are requested to notify the Press and their local postmaster imme- diately of change of address, giving both the old and the new addresses. Please allow four weeks for the change. Postmaster: send address changes to The Journal and Economics, The University of Chicago Press, Journals Division, P.O. Box 37005, Chicago, Illinois 60637. for missing numbers should be made within the month following the regular month of publication. The publisher expects to supply missing numbers only when losses have been sustained in transit and when the reserve stock will permit. Copying beyond fair use: The code on the first page of an article in this journal indicates the copyright owner’s consent that copies of the article may be made beyond those permitted by Sections 107 108 U.S. Copyright Law provided that copies ate made only for personal internal use, or for the personal internal use of specific clients and provided that the copier pay stated per-copy fee through the Copyright Clearance Center, Inc. Operations Center, P.O. Box 765, Schenectady, New York 12301. To request permission for other kinds of copying, such as copying for general distribution, for advertising or promotional purposes, for creating new collective works, or for tesalc, kindly write to the publisher. Manuscripts and editorial correspondence should be addressed to the editor, The Journal of Law and The University of Chicago Law School, 1111 East 60th Street, Chicago, Illinois 60637. Third Class postage paid at Chicago, Illinois. 1983 by The University of Chicago. All rights reserved. On the Resignation of Ronald H. Coase.. . . . . . . . . . . . . . . . . . . . . . . . . The Contractual Nature of the Firm B y STEVEN N. S. CHEUNG Antitrust and the Economics of Fcderalisrn B y FRANK H. EASTERBROOK.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A Reexamination of Delivered Pricing Systems By DENNIS W. CARLTON.. . . . . . . . . . . . . . . . . . . . . . . . . . ..*........... Rent Seeking, Noncompensated Transfers, and Laws of Succession By JAMES M. BUCHANAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Foreign Competition in Antitrust Law By JEFFREY. J. AND KENNETH L. . . . . . . . . Institutional Structures, Regulation, and Producer Gains in the Education Industry B y . . . . . . . . . . . . . . . . . . . . . . . . . The Enforceability of Security Interests in Consumer Goods By ALAN SCHWARTZ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Fire of Truth: A Remembrance of Law and. Economics at Chicago, 19321970 EDMUND W. (EDITOR) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . may be U.S. 73 5 1 71 1 1 7 163 NOTES TO AUTHORS Manuscripts submitted for publication should be typewritten on one side of the paper only (use x 1 l-inch bond) and double spaced throughout (including footnotes and figure Two copies of the paper should be submitted. Footnotes should be numbered ively and should be typed separately from the body of the text. References cited in the text should be explained in footnotes and not listed separately. (See recent issues of the for reference style.) Tables and figures should be drawn on separate from the text and labeled. Figures must be professional drawings or photographs, and originals must be available for the Press as camera-ready copy is required for printing. NOTICE will publish a special issue, volume June 1983. This issue will contain papers from the conference on Corporations and Private Property, sponsored by the Hoover Institution, at Stanford, California, November 19- 20, 1982, in recognition of the 50th anniversary of the publication of Adolf and Gardiner Means’s book, Modern Private Property. THE CONTRACTUAL NATURE OF THE FIRM* STEVEN N. S. of A half a has sir! R. I. ture of the Firm.“’ The impact this is now At about twenty years of and before receiving a bachelor’s from London School of Economics, conceived the thesis of that work during a traveling scholarship the United States in Consider- * For their helpful comments 1 am grateful to A. Alchian, Yoram Barrel. John McGee, and Dean Worcester. Ronald H. The Nature of the Firm. 4 Economica 386 (1937). The paper. ever, was written several years earlier (see note 3 The Sciences provides the following information. Breaking down the period of 1966-80 into three five-year periods, the of “firm” paper for each subperiod are: 17 citations; 47 citations: and citations. In personal correspondence wrote me his as follows: About the firm. I spent the year 1931-1932 in the United States where studied the problem of vertical and lateral integration in American industry. From ponder-ing on these problems came my views on the nature of the The basic idea in the article on the Nature of the Firm was certainly worked out by October, 1932 as a letter which I wrote (and which has been preserved) shows. Also 1 completed a draft of the article by the Spring of 1934 while still in As to why I waited until 1937 to publish. the reasons are various. 1 did not feel under any great pressure to publish it. I did in fact publish some other pieces before firm article but the in these papers in fact developed after those on the firm. Remember that I was a young lecturer having to learn a lot in order to teach courses on subjects on which knew very little and this took up a good deal of time. And was interested in many other aspects of I have never been to rush into print-indeed I find it difficult to express what have in mind and have never thought that the world would suffer much if it didn’t have opportunity to read my views. I did in fact make some changes in the period between and but was no change in my main position. I did not feel need to publish before had expressed my thoughts as well as I could. Some of the projects on worked in the 1930s have still not been completed although I hope one day to do so. About dates. As completed the first year of University work while still at high school (not unusual at that time), I completed my University work and passed the degree exami- nations in 193 (after 2 years at I was awarded a by the University of London in 1931 and spent the next year in the United States. At that time. 3 years residence was required for the award of a degree but the regulations were interpreted so as to allow my year in the United States to be counted as a of residence [Journal of vol. XXVI (April 1983 by The University of Chicago. All rights reserved. 1 2 JOURNAL OF LAW AND ECONOMICS ing the work started out as the equivalent of an term paper one stands in awe of the insights that prompted it. The issues surrounding what has been called “the firm” and the scope of economic behavior encompassed by thesis are far from re- solved. At present, different versions abound Coase meant, along with varied I do not propose to this growing body of literature or to argue that my interpretation is necessarily an accurate presentation of Coase’s position. Rather, once inspired by Coase’s early work to do research on contracts, I wish to return and expound on that work in light of my findings. Anyone who investigates the economics of contractual arrangements will that Coase’s “firm” paper relates to the choice of con- tracts.’ Yet Coase, aware of the significance and relevance of the mea- surement problem, suggested in 1969 that I look into the various measure- ments adopted in the industry. However, the difficulty of obtaining data blocked that attempt. By 1974 I had reached the view that piece-rate contracts a gateway to an understanding of the firm as an organization, because payment by the piece falls squarely in between the at LSE. This explains why I was awarded my degree in 1932 although I had passed the examination in 193 I. When I worked out my views on the nature of the firm, 1 was or 21. A letter written in October 1932 (and the independent recollections of Duncan Black) indicate I had them by October and presumably I developed them earlier-bctwcen October and the summer of My date of birth is December 29th. For some examples which seem most directly related to Coase’s work, see H. B. Information. and the of the Firm, 75 J. 399 (1961); G. The of Industry, J. 883 (1972); A. Alchian Harold Demsetz. Production, Information Costs, and Economic Organization, 62 Am. Rev. 777 (1972); Paul H. The Expansion of Firms, 81 J. Pol. 936 (1973); A. Michael The Economics of Internal Organization: An Introduction, 6 Bell. J. 163 (1975): John C. The Costs of Alternative Economic Organizations, 8 Can. J. 334 Oliver E. Williamson, Markets and Hierarchies (1975); Lloyd R. Cohen, The Firm: A Rcviscd Definition, 46 S. 580 (1979); and Yoram Measurement Costs and the Organization of Markets, 25 J. Law 27 (1982). Each of these works has a different interpretation of Coase, and they all disagree with Coase in different ways. This lack of consensus leaves room for further interpretation, although in the area of transaction costs the lack of a standardized terminology makes it difficult to tell where the disagreements lie. See Steven N. S. Cheung, Transaction Costs, Risk Aversion, and the Choice of Con- tractual Arrangements. 12 J. Law 23 (1969). With great reluctance 1 brought in risk sharing to explain the choice of share contracts in agriculture: several attempts made in 1968 to discard “risk” had not succeeded. Certain types of risk, such as the uncertainty of whether a promise will be honored or whether a product will live up to its advertisement, can be viewed as transaction costs. In such a case my preference is always for treating the problem in that light because testable implications are easier to derive. agriculture, however, risk resulting from nature poses a different problem. CONTRACTUAL NATURE OF FIRM 3 market and what Coase the firm. My of the piece-rate contract began in 1975 and continues.” What propose to do here, therefore, is to try to interpret Coase’s argument;, light of my findings contracts in general and about the piece-rate contract in particular. then that W C do not know what the is-nor is it vital to know. The word “firm” is simply a shorthand description of a way to organize activities under contractual arrangements that differ from those of ordinary product markets. THE AS A CONTRACTUAL ARRANGEMENT Coase’s thesis is that differences in the costs of operating in- stitutions (transaction costs) lead to the of a to supcrscdc a market. On the hand, market transactions involve products or con;- modities; on the other, “firm transactions” involve factors of production. The growth of a firm may then be viewed as the. replacement of a product market by a factor market, in a saving in transaction costs. This thesis is not easy to understand Coase does not “the firm”; nor, as we shall see, is there a clear distinction a product market and a factor market. Private ownership of productive inputs is assumed. Each input owner therefore has the option of (1) producing and marketing goods himself, (2) selling his input outright, or (3) entering into a contractual arrangement surrendering the USC of his input to an agent in for an The firm emerges with the third option: entrepreneur the who holds a limited set of use rights by contract directs production activities without immediate reference to the price of each activity, and com- modities so produced arc then in the Herein puzzle. private property rights are absent and hence above options arc not available, it is easy to understand why of a or an input are by an instead of by market prices. But . should a private property owner surrender his rights and be told what to do by a visible hand’? This choice, according to Coase, is made to reduce transaction costs. Joseph E. Stiglitz analyzes the piece-rate versus the wage contract in terms of risk and information, while explicitly stating that he the of supervision. It appears to me that his “inccntivc and risk” can be as problems of In any event, the Stiglitz approach is quite different from that in the present paper. E. Stiglitz, Incentives, Risk, and Information: Notes towards a of Hierarchy. 6 J. 552 (1975). interesting paper on the piece-rate contract. again based on different orientation from mine. is found in Edward Lazear Rosen. Order as Optimum Labor 89 J. (1981). 4 OF LAW AND ECONOMICS Some have suggested that such an is tautological. But it is not, because other reasons are also advanced for the emergence of firm, including division of labor, risk, and the coordination of production activi- ties. Coase considered these factors and rejected them all. To him, trans- action costs constitute the prime consideration. His is subject to refutation because the list of other-plausible factors makes it possible to conceive that total transaction costs might rise as the firm emerges. Even if transaction costs constitute the only relevant factor, or if all other factors are forcibly interpreted as belonging in the domain of trans- action costs, argument is still not tautological if one can identify different types of transaction costs and how they will vary under circumstances. Generality in the an argument whereas a total lack of general applicability renders an argument ad hoc. Testable implications are to bc found somewhere in between, and how the costs are to be specified is a of choice, depending on the problem at hand. An emphasis on transaction costs does not negate the potential gain from specialization through the division of labor or from more efficient coordination of productive efforts. Consider, for example, the classic “pin factory” in which each of the multiple input owners specializes by working on only one part. If all costs of transaction were zero, a customer buying a pin would make a separate payment to each of the many con- tributing to its production. Comparative advantage guides each to specialize in his own skill, and if it appears desirable to hire a coordinator of activities, the buyer of the pin will simply make an additional payment to him. In such a case, a large number of product prices would direct the production of the single pin. such a world it would be redundant to speak of a product market and a factor market. The two would be inseparable: buyer would bc pay- ing simultaneously for the product and for the contribution of the input To separate a product from a factor requires that an pay input owners while from customers payment for the prod- ucts he hands out. Whereas the standard approach assumes the number of products as Coase’s view is that this number is determinate only if transaction costs arc explicitly incorporated into the analysis. The problem can be stated more fundamentally. Any productive input is a property if, within well-defined limits, its owner has (1) the right to exclude others so that he alone may decide on its use, (2) the right to extract exclusive income from its use, and (3) the right to transfer the property (including labor) to or to exchange with anyone he sees fit. The right to exchange implies the right to contract, and property rights may be transacted through a wide variety of contractual arrangements. When CONTKACTUAL OF these rights are exchanged it is. of course, for the of higher income to the owner, and the choice of contracts will con- strained by the costs of transaction. Our main concern is not the transaction itself but the contractual arrangements through which right to use the input is delegated to another party and commodities produced by this use arc sold to consum- ers. No outright transfer is made, and when input owner retains some . other rights the contract a structured document.’ A delimited of use rights is in exchange for an form of contract that binds input owner to follow directions instead of mining his own by continual rcfcrcncc to the market prices of a variety of activities may perform. The of rights is a of and the of the rights is the subject of contracting, often an implicit by custom, and by common law. It goes out saying that a will not be asked to do work normally reserved for a janitor. The payment is often based on a measured property (for example, hours per day) that bears no resemblance to the properties of the final commodities priced for sale. For this reason, ob- served market prices cannot the owner of the input to perform in the same manner as if activity he performs were measured and priced. Hence the surrender of use rights often implies the delegation of the right to what to do. With private property rights, economic analysis asserts as an axiom that when an input enters into a contract of type described (joining the firm) hc a gain to his other options, for has had option of not joining. What must bc explained is why that increase occurs. Could it be that someone make the decision is . more The is We have that right to make a decision is the result of the difference in pricing and measuring properties. It cannot in general be the case that decisions are superior to consumer r-cached through the price mechanism. Errors arc bound to be less when price information guides every activity Could it be that specialization, coordination, and economy of scale achieved by pooling input resources from many owners will yield higher . incomes for all, so that each chooses to join the firm? Again the is no. As noted earlier, every activity is measured priced. then benefits arising from and coordination can be with- ’ See Steven N. S. The Structure of a Contract and Exclusive 13 J. 4Y 6 JOURNAL OF LAW AND ECONOMICS out the “factor market”-the right to decide and use one’s input need not be delegated to some agent or entrepreneur, because in a product market the input owner will receive a payment for every contribution. Could the firm emerge because people-shirk, cheat, or are opportu- nistic-as some recent theses imply Maybe. But the problem is that this sort of behavior is and will vary only in degree and in kind depending on the form of contract chosen or on how the property trans- acted is measured and priced. The behavior of a factory worker whose shirking requires the service of results from the worker’s the right to use his labor. He would not shirk, or at least he would shirk differently, if for every small contribution he were paid a price. Coase’s answer is bold: “The main reason why it is profitable to estab- lish a firm would seem to be that there is a cost of using the price mecha- nism. The most obvious cost of ‘organising’ production through the price mechanism is that of prices
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